U.S. Breaks Old Legal Ground

Precedents of WWII are cited in jailing of alleged 'dirty bomber' since May without charges.

CHICAGO — This is where Jose Padilla was first arrested. A short, chubby kid, he was picked up by police for everything from stealing a doughnut to killing a rival gang member. He lived across from his old grade school, where teachers viewed him as "silly and disruptive."

Here too is where he stepped off a flight from Pakistan last spring and into the grasp of federal agents on the jetway at O'Hare International Airport. The attorney general of the United States labeled him a "known terrorist" who was planning an attack with a radioactive "dirty bomb" that could cause "mass death and injury."

For six months now, he has been hidden away, not charged and not released. He was taken first to New York to appear before a federal grand jury investigating the Sept. 11, 2001, terrorist attacks, and since then has been held in the brig on a military base in South Carolina.

At first, it appeared that the U.S.-born Padilla fit in the same legal category as John Walker Lindh, the "American Talib" -- that he would face federal criminal charges, be entitled to a lawyer and have his day in court, as any U.S. citizen would.

But the federal government concluded that Padilla is a wartime security threat and has held him without charge. Atty. Gen. John Ashcroft, citing World War II legal precedents, contends that in wartime the nation has authority to take extraordinary steps to protect the public.

Padilla's case has attracted the attention of civil rights groups such as the American Civil Liberties Union, which have asked a federal district judge in New York to "charge him or release him," in the words of attorney Donna R. Newman. Judge Michael B. Mukasey is expected to rule any day now.

So far, little is known about the government's evidence against Padilla because of the lack of legal paperwork. An affidavit from a Defense Department official indicates, however, that much of it was gathered after senior Osama bin Laden lieutenant Abu Zubeida was captured in Afghanistan in March and began talking to U.S. interrogators.

Padilla -- born in Brooklyn, N.Y., raised in Chicago, married in South Florida and arrested on U.S. soil -- has been afforded fewer legal rights than such notorious foreign-born terrorist suspects as Zacarias Moussaoui, the Frenchman accused of being the would-be 20th hijacker, and Richard C. Reid, the British "shoe bomber" caught in the act of trying to blow up a commercial jetliner in flight. Both were charged in court and have had lawyers arguing their cases.

Padilla is being handled differently than Lindh, the only other born-and-bred American suspect in the post-Sept. 11 investigations. The Marin County youth who was captured on the battlefields in Afghanistan was prosecuted in federal court in Virginia. Once threatened with the death penalty, Lindh, with a top-flight lawyer retained by his affluent family, agreed to a 20-year prison term.

Padilla's limbo status most closely resembles that of Yasser Esam Hamdi, who was born in Baton Rouge, La., and moved to Saudi Arabia as a child with his parents. Captured in Afghanistan, Hamdi was taken to the U.S. prison camp for terrorist suspects at Guantanamo Bay, Cuba, and is being held without charge at a military brig in Virginia. Authorities said he holds dual U.S.-Saudi citizenship."One of the most remarkable aspects of this case," said Steven R. Shapiro, ACLU legal director, "is that the government has offered no cogent explanation for its decision to treat Padilla differently."

A highly placed official in the Justice Department, who requested anonymity, said: "In wartime, you have options. You do what is best for the nation's security."

For now, the government has no plans for Padilla. Even if Mukasey orders them to act, the government likely will appeal.

"People say he's a small fish," the Justice official said. "Well, the small fish are the ones who do the most damage. Osama bin Laden is not going to come over here and strap on dynamite and blow himself up.

"But Padilla was in the process of planning this dirty-bomb attack.... He was going to look for sites that would be good targets. He was looking for places where they could get the material for the bomb."

*

He was born to Puerto Rican parents. His mother, friends and relatives said, had four children, and his father died when he was a child.

They moved to Chicago before Padilla was 5. His mother took low-paying jobs at hotels, and the family lived in a small two-story gray-stone. The young Jose slept on a bunk in a cramped room near the kitchen.

The home sits across from Darwin Elementary School in Logan Square on Chicago's near northwest side. The neighborhood was 90% Latino, mostly poor Puerto Ricans, when young Padilla was trudging to class in the late 1970s and early 1980s.

School counselor Art Ryden can still hear the boy speaking English with no accent. But mostly he recalls Padilla's eyes, his dark-marble stare, and his early flirtation with such groups as the Imperial Gangsters and the Latin Monsters.